Commentary: The Supreme Court and marriage for same-sex couples — Part I

Posted Wed, April 15th, 2015 10:41 am by Michael Klarman

As part of our expanded coverage of this month’s oral arguments in the challenges to state bans on same-sex marriage, we are pleased to present this post by Michael Klarman on the history of the same-sex marriage movement and, more broadly, on how constitutional law evolves in the United States.

Two years ago, the Supreme Court struck down one section of the federal Defense of Marriage Act (DOMA) but ducked on the broader question of whether the Constitution requires states to permit same-sex couples to marry. Since then, most of the drama over this issue has dissipated. Few Court watchers any longer doubt that five Justices will support a right to marriage for same-sex couples. A look back at the history of the movement to extend the right to marry to same-sex couples sheds light on how constitutional law tends to evolve in the United States.

Half a century ago, every state but one criminalized homosexual sex, and the American Psychiatric Association deemed homosexuality a mental disease. The federal government would not hire people who were openly gay or permit them to serve in the military. Only a handful of gay rights organizations existed, and their membership was sparse. Most Americans at the time would have considered the idea of same-sex marriage facetious. Gallup did not even bother to poll on the issue.

In the early 1970s, in the midst of a burst of gay activism unleashed by the Stonewall rebellion, several same-sex couples filed lawsuits demanding marriage licenses. Courts did not take their arguments very seriously. For example, justices on the Minnesota Supreme Court would not dignify the same-sex marriage claim by asking even a single question at oral argument, and their opinion rejecting it invoked the Book of Genesis as authority.

Securing marriage rights for same-sex couples was not then a priority of gay activists. Rather, they focused on decriminalizing consensual sex between same-sex partners, securing legislation forbidding discrimination based on sexual orientation in public accommodations and employment, and electing the nation’s first openly gay public officials. Indeed, most gays and lesbians at the time were deeply ambivalent about marriage. Lesbian feminists, for example, tended to regard the institution as oppressive, given the traditional rules that defined it, such as coverture and immunity from rape.

Only by the late 1980s were gay activists beginning to pursue legal recognition of their relationships. The AIDS epidemic highlighted the vulnerability of gay and lesbian partnerships and forced an entire generation of young gay men to contemplate legal issues surrounding their relationships, such as hospital visitation and surrogate medical decision making. Legal reform faced a formidable obstacle in public opinion. As late as 1990, roughly seventy-five percent of Americans deemed homosexual sex immoral, only twenty-nine percent supported gay adoptions, and backing for same-sex marriage was as low as ten to twenty percent. Not a single jurisdiction in the world had yet allowed same-sex couples to marry.

In 1991, three gay couples in Hawaii challenged the constitutionality of laws limiting marriage to a man and woman. No national gay rights organization would support the litigation, which was considered hopeless. However, in 1993 the state supreme court unexpectedly ruled that excluding same-sex couples from marriage was presumptively unconstitutional. The case was remanded for a trial, at which the government would have the opportunity to show a compelling justification for banning same-sex marriage. In 1996 a trial judge found the state’s showing insufficient and ruled that same-sex couples were entitled to marry.

Even in a relatively gay-friendly state, allowing same-sex couples to marry was a radical concept then. In 1998 Hawaiian voters rejected it in a referendum by a vote of sixty-nine percent to thirty-one percent. A similar vote in Alaska that year produced a nearly identical outcome.

For Republicans in the 1990s, same-sex marriage was a dream issue to organize against because it both mobilized their base of religious conservatives and aligned the party with most swing voters. Objecting that “some radical judges in Hawaii may get to dictate the moral code for the entire nation,” Republicans in 1996 introduced bills in most state legislatures to deny recognition to same-sex marriages lawfully performed elsewhere. Within five years, thirty-five states had enacted statutes or constitutional provisions to “defend” traditional marriage.

Same-sex marriage also entered the national political arena in 1996. Just days before the Republican Party’s Iowa caucuses, anti-gay activists conducted a “marriage protection” rally, at which presidential candidates denounced the homosexual agenda, which was said to be “destroying the integrity of the marriage-based family.” A few months later, the party’s presidential nominee, Senator Robert Dole, co-sponsored the federal Defense of Marriage Act (DOMA), which provided that no state was required to recognize another’s same-sex marriages and that the federal government would not recognize them either for purposes of determining eligibility for federal benefits. While some Democrats denounced the bill as an “election year gimmick,” Congress passed it by lopsided margins, and President Bill Clinton, eager to neutralize the issue politically, signed the measure.

The litigation victory in Hawaii inspired activists in Vermont to follow suit. In 1999 that state’s high court ruled that the traditional definition of marriage discriminated against same-sex couples. The legislature was given the option of amending the marriage law to include same-sex couples or of creating a new institution that provided them with all of the benefits of marriage. The legislature’s 2000 session was dominated by the issue of civil unions, and after weeks of impassioned debate, lawmakers narrowly approved such a law. Opponents of the measure encouraged voters to “keep your blood boiling” for the fall election. In an acrimonious campaign, civil union opponents promised to “Take Back Vermont.” In the end, as many as three dozen Vermont lawmakers may have lost their jobs over the civil unions legislation.

Developments in Vermont also attracted national attention. Conservative activist David Frum warned that the “long-anticipated legal crisis of the American family has arrived,” and he denounced civil unions as a large and irreversible step towards same-sex marriage. All ten candidates for the Republican presidential nomination in 2000 denounced civil unions. One of them, Gary Bauer, called the Vermont decision “in some ways worse than terrorism.”

Inspired by Vermont, activists in Massachusetts filed a lawsuit demanding the right to marry for same-sex couples. In 2003 the state’s Supreme Judicial Court vindicated their claim while rejecting civil unions as “second-class citizenship.” Massachusetts thus became the first American state and only the fifth jurisdiction in the world to recognize same-sex marriage.

The ruling sparked a mild and transient backlash in the commonwealth, as the state legislature briefly but seriously debated the possibility of overturning the decision by constitutional amendment. Yet across the rest of the nation, the decision generated enormous political resistance. President George W. Bush immediately denounced it, and many Republican members of Congress called for a federal constitutional amendment to define marriage as the union of a man and woman. In February 2004, after Mayor Gavin Newsom of San Francisco had begun marrying same-sex couples in defiance of California law, President Bush endorsed the amendment, explaining that “after more than two centuries of American jurisprudence, and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization.”

The same-sex marriage issue proved an enormous political boon to Republicans in 2004. Americans then rejected same-sex marriage by two to one, and opponents generally felt more passionately than did supporters. Religious conservatives, a vital Republican constituency, overwhelmingly and passionately opposed same-sex marriage. By contrast, same-sex marriage proved vexing to Democrats. Approximately seventy percent of self-identified gays voted Democratic, yet some traditionally Democratic-leaning constituencies, such as working-class Catholics and African Americans, tended to strongly oppose same-sex marriage. Democratic presidential contenders Howard Dean, John Kerry, and John Edwards all supported civil unions while opposing same-sex marriage. Yet they also condemned the proposed federal constitutional amendment to ban same-sex marriage. Controlling both houses of Congress, Republican leaders forced Democrats to vote on the proposed amendment, even though it had no realistic chance of passing.

Republicans also placed marriage referenda on the ballot in thirteen states in 2004, hoping to inspire religious conservatives to come to the polls and to make same-sex marriage more salient in the minds of voters. The measures easily passed everywhere, by margins of as much as eighty-six percent to fourteen percent (in Mississippi).

Same-sex marriage also proved decisive in a couple of U.S. Senate races in 2004. In Kentucky, incumbent Republican senator Jim Bunning attacked same-sex marriage to rescue his floundering campaign, and state Republican leaders called Bunning’s opponent, a forty-four-year-old bachelor who opposed the federal marriage amendment, “limp-wristed” and a “switch hitter.” On Election Day, a state ballot measure barring same-sex marriage passed by a three –to-one margin, while Bunning squeaked through with just 50.7 percent of the vote.

In the U.S. Senate race in South Dakota, Republican John Thune, an evangelical Christian, challenged Democratic Senate minority leader Tom Daschle and made opposition to same-sex marriage the centerpiece of his campaign. Thune pressed Daschle to explain his opposition to the federal marriage amendment and warned that “the institution of marriage is under attack from extremist groups. They have done it in Massachusetts and they can do it here.” Prominent religious conservatives such as James Dobson and Tony Perkins told a Sioux Falls crowd of five thousand that if the institution of marriage was not defended from homosexual attack, “it’s going to be gone.” In the November balloting,Thune defeated Daschle by fifty-one percent to forty-nine percent;it was the first defeat of a Senate party leader in more than fifty years.

Same-sex marriage also played a prominent role in the 2004 presidential election campaign. President Bush regularly called for passage of the federal marriage amendment and reminded voters that his opponent, John Kerry, hailed from Massachusetts, where judges had recently decreed same-sex marriage a constitutional right. Many pundits had predicted that the election would come down to Ohio, and it did. Had President Bush not received Ohio’s electoral votes, he would not have won a second term. His margin of victory there was about two percent, while the same-sex marriage ban on the ballot there passed by twenty-four percentage points. If the marriage amendment mobilized enough conservatives to turn out or induced enough swing voters to support Bush, then it may have determined the outcome of the presidential election.

Over the next two years, ten more states passed constitutional amendments barring same-sex marriage. In 2006-07, high courts in Maryland, New Jersey, New York, and Washington – possibly influenced by the political backlash ignited by the Massachusetts ruling – also rejected same-sex marriage.

Yet, despite the fierce political backlash ignited by same-sex marriage rulings in the 1990s and 2000s, public backing for gay rights continued to grow. Support for allowing gays and lesbians to serve openly in the military increased from fifty-six percent in 1992 to eighty-one percent in 2004. Backing for laws barring discrimination based on sexual orientation in public accommodations rose from forty-eight percent in 1988 to seventy-five percent in 2004. Support for granting same-sex couples the legal rights and benefits of marriage without the title increased from twenty-three percent in 1989 to fifty-six percent in 2004.

Shifts in public opinion translated into policy changes. The number of Fortune 500 companies offering health care benefits for same-sex partners rose from zero in 1990 to 263 in 2006. The number of states with anti-discrimination laws covering sexual orientation increased from one in 1988 to twenty in 2008.

Dramatic changes were also afoot in the media and popular culture. In 1990 only one network television show had a regularly appearing gay character, and a majority of Americans reported that they would not permit their child to watch a television show with gay characters. By the middle of the decade, however, the most popular situation comedies, such as Friends and Mad About You, were dealing with gay marriage. And in 1997 Ellen DeGeneres famously came out in a special one-hour episode of her popular television show, Ellen. Forty-six million viewers were watching, and Time put her on its cover with the headline, “Yep, I’m Gay.”

Support for gay marriage was increasing as well, despite the political backlash against court rulings in its favor. Between the late 1980s and the late 1990s, support grew from roughly ten or twenty percent to thirty or thirty-five percent. In 2004, the year after the Massachusetts court ruling, one study showed that opponents of same-sex marriage outnumbered supporters by twenty-nine percentage points, but by 2007, that gap had narrowed to seventeen percentage points, and by 2008 it was down to just twelve.

The most important factors bolstering support for same-sex marriage were sociological and demographic. The modern gay rights movement has always been grounded on the core insight that as more gays and lesbians came out of the closet, the social environment would become more gay-friendly, which in turn would induce more gays and lesbians to come out of the closet.

As more gays and lesbians have openly embraced their sexuality, more parents, children, siblings, friends, neighbors, and co-workers have come to know and love someone who was openly gay. The number of Americans who reported knowing someone who was gay increased from twenty-five percent in 1985 to seventy-four percent in 2000.

The principal reason the coming-out phenomenon has been so significant is that knowing someone who is gay powerfully influences support for gay equality. Because few people favor discrimination against those whom they know and love, every gay person coming out of the closet has meant more supporters of gay equality. One 2004 study found that sixty-five percent of those who reported knowing someone who is gay favored same-sex marriage or civil unions, compared with just thirty-five percent of those who reported not knowing any gays.

Support for same-sex marriage was growing for a second, related reason: Young people had come to overwhelmingly support it. Younger people are far more likely to know someone who is openly gay, and they have grown up in an environment that is much more tolerant of homosexuality than that of their parents. Age-based disparities in support of same-sex marriage rights are extraordinary. One scholarly study found a gap of forty-four percentage points between the oldest and youngest survey respondents in their attitudes toward same-sex marriage.

In addition to these sociological and demographic variables, same-sex marriage litigation, despite the short-term political backlash it sparked, probably advanced the cause of same-sex marriage over the longer term. Litigation undoubtedly raised the salience of same-sex marriage as an issue. From the perspective of 1990, same-sex marriage was a radical social reform. Such changes do not occur until people begin to discuss them, which court rulings forced them to do.

Same-sex marriage rulings also had inspirational and preference-shaping effects. Litigation victories inspired gay activists to believe that change was possible, leading them to file lawsuits in additional states. The rulings also led more same-sex couples to want marriage – an institution about which they previously had been ambivalent. People often teach themselves not to want something they know they cannot have. Court decisions made same-sex marriage seem more attainable.

Same-sex marriage rulings also may have affected attitudes by creating thousands of married same-sex couples, who quickly became the public face of the issue. Friends, neighbors, and coworkers of these couples began to think differently about marriage equality. Moreover, by producing actual same-sex marriages, court decisions laid the groundwork for refuting prophesies of opponents that allowing same-sex marriages would lead the sky to fall.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.